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United States of America v. Rogelio Delgado-Benitez

January 3, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
ROGELIO DELGADO-BENITEZ, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the motion to dismiss indictment under 8 U.S.C. § 1326(d) filed by the Defendant Rogelio Delgado-Benitez. ECF No. 11.

BACKGROUND FACTS

On June 20, 2006, Defendant was served with a Notice to Appear in removal proceedings. The Notice to Appear alleged that (1) Defendant was not a citizen or national of the United States; (2) Defendant was a native and citizen of Mexico; (3) Defendant arrived in the United States near Tecate, California on or about November 22, 2005; and (4) Defendant was not then admitted or paroled after inspection by an Immigration Officer. ECF No. 13, Exhibit 11. The Notice to Appear charged that the Defendant was subject to removal under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act "in that you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." Id.

On July 26, 2006, a deportation hearing was held before the Immigration Judge. The Immigration Judge initially conducted a group hearing explaining the purpose of the hearing and the rights of each person at the hearing. The Immigration Judge explained the issues relevant to determining whether deportation should be ordered and the forms of relief from deportation including voluntary departure. The Immigration Judge explained that each person had the right to an attorney, spoke about a list of free legal services, and advised that he could grant a continuance of the hearing if anyone needed additional time to hire an attorney or find free legal representation. The Immigration Judge explained the right of appeal. ECF No. 11-2 at 9-11.

After the group hearing, the Immigration Judge addressed the Defendant individually. The Immigration Judge asked the Defendant his true name, the language he speaks and understands best, whether he was present at the earlier advisal of rights, whether he wanted his case postponed to obtain an attorney or for any other reason, whether he wanted to have his case heard and decided today, and whether he receive the Notice to Appear. Defendant responded to all questions without indicating any confusion or inability to understand. The following questions and answers then took place:

IJ: Sir, I am going to mark and admit [the Notice to Appear] as Exhibit 1 in these proceedings. Sir, are you a citizen or national of the United States of America?

Def: Mexico. Mexican citizen.

IJ: Sir, listen to my question and answer it with a yes or no. Are you a citizen or national of the United States of America?

Def: Mexican.

IJ: Apparently Sir, you do not understand what it means to answer my question yes or no. Have a seat, Sir. If I get to your case at the end of today, we'll do it at the end of today, otherwise, I will do it around the 10th of October. Matter's trailed.

ECF No. 11-2 at 12-13. At the time of the hearing, October 10th was two and half months away.

The Immigration Judge recalled the Defendant's case later that same day for a second individualized hearing. The Immigration Judge asked the Defendant his true name, the language he speaks and understands best, whether he was present at the earlier advisal of rights, whether he wanted his case postponed to obtain and attorney or for any other reason, and whether he wanted to have his case heard and decided today. Defendant responded to all inquiries. Defendant stated that he did not want to continue the hearing to allow time to hire an attorney or for any other reason. The Immigration Judge asked the Defendant if he had received the Notice to Appear and reviewed all of the allegations of the Notice to Appear. Defendant admitted all of the allegations of the Notice to Appear. Based upon the Defendant's response, the Immigration Judge sustained the charge of removeability. In response to the Immigration Judge's question, the Defendant requested to be removed to Mexico. ECF No. 11-2 at 14-16.

The Immigration Judge advised the Defendant that he was eligible for voluntary departure. The Immigration Judge informed the Defendant that if he wished to apply for voluntary departure, Defendant's case would be reset to a future hearing date within thirty days. The Immigration Judge specifically asked Defendant if he wanted to apply for voluntary departure. Defendant stated "No." ECF No. 11-2 at 16. The Immigration Judge asked the Defendant whether he wanted to ...


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